Mosing v. Hagen

• Decision Date: 31 January 1967
• Citation: 33 Wis.2d 636,148 N.W.2d 93
• Parties: Harold MOSING, Respondent, v. Joseph HAGEN et al., Appellants.
• Court: Wisconsin Supreme Court

Page 93

148 N.W.2d 93

33 Wis.2d 636

Harold MOSING, Respondent, v. Joseph HAGEN et al., Appellants.

Supreme Court of Wisconsin.

Jan. 31, 1967.

Crowns, Crowns, Merklein & Midthun, Wisconsin Rapids, for appellants.

Peickert, Anderson, Fisher, Shannon & O'Brien, Stevens Point, for respondent.

BEILFUSS, Justice.

Basically there are three issues presented by this appeal:

(1) Does sec. 262.13(3), Stats., require the court to declare the service of the summons void?

(2) Did the deposit of the summons together with the transcription of a discovery deposition in a sealed envelope with the clerk of court constitute filing?

(3) Was sec. 262.13(3), Stats., properly noticed for hearing and is it a valid rule of court?

Sec. 262.13, Stats., in part, provides:

'Summons, filing. (1) The summons shall be filed with the clerk of the court in which the action is brought and the clerk's fee and state suit tax, if applicable, paid, as follows:

'(a) Where there has been service on any defendant otherwise than by publication, the summons shall be filed and the clerk's fee and suit tax paid within 10 days after the earliest such service.

'(b) * * *

'(2) If the summons is not filed and the clerk's fee and suit tax are not paid as required by subs. (1), any party upon whom the summons was served may file his copy of the summons, without payment of suit tax or clerk's fee, and shall be entitled, upon application and notice thereof to plaintiff, to an order requiring plaintiff to file the original summons or a copy thereof and to pay the clerk's fee and suit tax within a specified time, not exceeding 90 days, after service upon plaintiff of notice of entry of the order. The court may allow costs of motion to the moving party, and if allowed, such costs must be deposited with the clerk, for payment to the moving party, before the summons may be filed. If the summons is not filed and payments are not made within the time specified in the order, the moving party may pay the clerk's fee and suit tax and have a judgment, without further notice, dismissing the action as to him, without prejudice, and for his costs of motion, if allowed, and his disbursements.

'(3) In any event, if the summons, or a copy which was served on any defendant, is not filed and the clerk's fee and suit tax are not paid within one year after the earliest service on any defendant in the action, service made on any defendant in the action shall lose all force and become void, as if never made. * * * The effective date of this subsection is May 1, 1965.'

This statute was published as a rule of the supreme court adopted January 20, 1964. Subs. (1) and (2) were made effective May 1, 1964, and sub. (3) was made effective May 1, 1965.

From the agreed facts it appears that the summons was served on November 12, 1964, and that it was not filed (assuming the deposit with the deposition did not constitute filing) until January 3, 1966. A literal application of sec. 262.13(3), Stats., would require the court to declare the service of the summons to be void.

The trial court approached the issue in terms of whether sec. 262.13(3), Stats., is 'procedural' or 'substantive.' It determined that the subsection deals with the process and procedure by which jurisdiction is obtained, and as such is part of law of procedure and not part of the substantive law. The trial court stated, however, that the statute gives a defendant the right to come into court and have an action dismissed where the summons has not been filed and fees not paid within one year of the service of the summons. As such, it said that the statute affects vested and contractual rights and where the statute of limitations has run a vested right of action may be extinguished. In the instant case the statute of limitations would ordinarily have run May 15, 1965. Sec. 893.205, Stats. Thus the trial court held that the statute could not be given retroactive effect because although it is procedural in effect it is substantive in application.

The principal argument of the plaintiff-respondent is that an application of the statute affects a vested right of the plaintiff, that the rule is therefore substantive in effect, and is not to be applied retrospectively.

In Steffen v. Little (1957), 2 Wis.2d 350, 357, 358, 86 N.W.2d 622, 625, we stated:

'While statutes in general are construed prospectively the rule is otherwise with statutes whose operation is procedural or remedial. In State ex rel. Davis & Starr Lumber Co. v. Pors (1900), 107 Wis. 420, 427, 83 N.W. 706, 708, 51 L.R.A. 917, we quoted Chancellor Kent as follows:

"This doctrine (prospective construction of statutes only) is not understood to apply to remedial statutes, which may be of a retrospective nature, provided that they do not impair contracts or disturb absolute vested rights, and only go to confirm rights already existing and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations.' * * *"

'In Pawlowski v. Eskofski, 1932, 209 Wis. 189, 192, 244 N.W. 611, 613, we said: 'It is true as a general rule that statutes that are remedial only are retroactive, * * *.' In State ex rel. Schmidt v. District No. 2, 1941, 237 Wis. 186, 190, 295 N.W. 36, 38, we said: '* * * it is a fundamental rule of statutory construction that a retroactive operation is not to be given so as to impair an existing right or obligation otherwise than in matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment.' (Emphasis supplied.)'

The plaintiff-respondent's real concern is that if the service of the summons is held to be void his cause of action for personal injuries is barred by the three-year statute of limitations. ¹ (The injury occurred May 14, 1962, and the summons served on the defendant November 12, 1964. The statute of limitations would be tolled if the service of the summons is not void.)

The plaintiff contends that on the date of service, November 12, 1964, he acquired a vested right to pursue his personal injury action and that on this date he had no obligation to file his summons within one year from the date of service.

Sec. 262.13, Stats., originated as a court rule pursuant to sec. 251.18. It was adopted by the court January 14, 1964, and published on January 20, 1964. Subs. (1) and (2) were made effective May 1, 1964, and sub. (3) on May 1, 1965.

Sub. (1) was effective on the date of the service of the summons, November 12, 1964. This subsection required the plaintiff to file his summons and pay the suit tax and clerk's fees within 10 days. Sub. (3) had also been published and was notice to the plaintiff that service of the summons could be declared void after May 1, 1965, unless the summons was filed and suit tax and clerk's fees paid within one year. This section had been published 16 months before its effective date and 20 months before its application to the case at hand.

Sec. 262.13(3), Stats., did not jeopardize the plaintiff's right to assert his cause of action. It in no way diminished the period of the statute of limitations provided he proceeded as required by sec. 262.13, Stats. We conclude that sec. 262.13(3) is a procedural statute and should be applied to the service of the summons in this case. We do not perceive that its application affects any substantive rights nor that it imposes an unreasonable burden upon the plaintiff as to its procedural requirements. Without question, the 16 month delay, after publication of its effective date, was to avoid any harshness that might otherwise be visited upon litigants. We hold that sec. 262.13(3) became effective May 1, 1965, as to any summons served one year prior thereto.

On June 1, 1965, the court commissioner delivered the transcript of the discovery deposition in a sealed envelope to the clerk of court. Included in the sealed envelope was the original summons. It is the contention of the plaintiff that this constituted a filing of the summons. Admittedly the suit tax and the clerks' fees were not paid.

Sec. 326.10, Stats., 1963, provides in part:

'* * * The deposition shall in all cases be delivered or transmitted by the officer by whom the same is taken to the clerk of court * * * before whom the action, proceeding or matter is pending, securely sealed, and shall remain sealed until opened by such court, (or) clerk * * *.' (Emphasis supplied.)

The term 'file' has been defined as follows:

'The word 'file' is derived from the Latin 'filum' signifying a thread, and its present application is evidently drawn from the ancient practice of placing papers upon a thread, or wire, for safekeeping. The origin of the term clearly indicates that the filing of a paper can only be effected by bringing it to the notice of the officer, who anciently put it upon the thread or wire; and, accordingly, under the modern practice, the filing of a document is now generally understood to consist in placing it in the proper official custody by the party charged with the duty of filing it, and the receiving of it by the officer, to be kept on file.' Anno. 15 Am.St.Rep. 294; 41 Am.Jur., Pleading, p. 509, sec. 316.

Upon the filing of a summons the clerk of court is obligated to assign a number to each case, prepare a docket listing the parties, keep it available for public inspection, and collect suit tax and clerk's fees. ²

The clerk of court is not obligated to unseal the deposition and had no way of knowing that the summons was enclosed therein, nor that it was being offered for filing. No docket or record of the case was made nor was suit tax and clerk's fees paid. The mere enclosure of a summons in the sealed envelope containing the transcript of a deposition is not sufficient to constitute filing.

The plaintiff-respondent also contends that sec. 262.13(3), Stats., is invalid because proper notice of hearing was not given.

Sec. 262.13(3), Stats., came into being as a supreme court rule and as such...